Khuda Bakhsh Marri, J.--This appeal under section 410 of the Code of Criminal Procedure is directed against the judgment dated 14th May 1970, passed by the learned Additional Sessions Judge, Tharparkar at Sanghar Mr. Abdul Ghafoor Shaikh in Sessions Case No, 20 of 1969, whereby he convicted appellants Anwar son of Wali Muhammad aged 25 years and Abdullah son of Yar Muhammad aged 30 years under sec tion 302, P. P. C. read with section 34, P. P. C. respectively and sentenced each of them to transportation for life.
2. Briefly the facts of this case are that Banho by caste Bughti is alleged to have been murdered as per F. I. R. on 23-8-1968 at 7 a.m., the scene of offence being west of village of Bahram Khan at a distance of about 3/4 miles on road of Bakar towards east from Police Station at a distance of seven miles, Taluka Sanghar. The F. I. R. was filed by Mst. Janul wife of deceased Banho at about 8- 35 hours. Before going further, it is necessary to establish the relationship of the accused with the complainant party. Mst. Janul the complainant is sister of Wali Muhammad. Accused Anwar is son of Wali Muhammad while accused Abdullah is son of sister of Wali Muhammad and that of complainant. It is on record that there was matrimonial dispute between the complainant and Wali Muhammad. A brother of Wali Muhammad namely, Soomar who is incidentally the brother of complainant Mst. Janul was murdered about 4 years back. In that case deceased Banho and his two sons Punhoo and Mitho were challaned, the case however was referred to Jirga which convicted Mitho and sentenced him to seven years' imprison ment while deceased Banho and his second son Punhoo were let off. This decision is said to have taken place 10 months prior to the present incident. On 21-8-1968 the complainant along with her deceased husband Banho, Bajhi, P.
W. Rohal Khan and two girls of the family, according to the prosecution, took Holy Quran and went to Wali Muhammad's village to request him to settle the dispute and pardon them for the murder of Soomar, the party stayed for a night in the house of Wali Muhammad but they could not succeed in the mission and Wali Muhammad refused to come to an agreement. Having been disappointed, the complainant party left next morning for village Bahram Khan, the very next day i.e. 22-8-1968 for the purpose of offering condolence to his brothers Sahib Khan and Qaisar, for the demise of Bahrain Khan Bugti. While they were staying in the village of Bahram Khan, it is alleged that one Mubarak who is related to both the parties brought a message from Wali Muhammad to Banho to the effect that he should return to village of Wali Muhammad early next morning so that- a settle ment may be arrived at. It is the case of prosecution that early next morning deceased Banho with his wife Mst. Janul returned from village of Bahram Khan to the village of Wali Muhammad on 23-8-1968, when they had covered a distance of about 3/4 miles, complainant noticed that the present two accused sprang out from Khabar bushes, accused Abdullah had a gun and accused Anwar had a lathi. It is alleged that Anwar caught hold of complainant while Abdullah fired two shots from his gun at Banho who was hit and fell down and Anwar also gave some lathi blows to the deceased. Thereafter, both the accused arc said to have run away. The complainant raised cries attracting attention of 2-3 persons including Qadir Bux P. W. who was informed by the complainant about the incident and asked him to stay at the dead body and she went towards village of Bahram Khan to inform the villagers. On the way complainant is said to have found Hashim, she informed him as well and asked him to inform other villagers. In the meanwhile Ghos Bux and other villagers reached the vardat and complainant narrated the incident to them. She then went to Sanghar where at the Police Station an F. I. R., as stated above, was recorded.
3. The Police took up investigation. Dead body was sent for post-mortem examination and after necessary enquiries challaned the accused in the Court of Civil Judge and F. C. M., Sanghar under section 302, P. P. C. read with section 34, P. P. C. who committed the accused to the Court of Additional Sessions Judge, Tharparkar at Sanghar who has convicted and sentenced them as stated above.
4. The ocular evidence in this case comprises of Mst, Janul P. W. being the complainant and one Qadir Bux P. W.
3. Qasir Khan and his brother Sahib Khan and Muhammad Hussain, Investigating Officer are produced by the prosecution for corroboration of the evidence of the above-stated eye-witnesses. These persons went to the vardat subsequently, saw the dead body of deceased Banho and then saw the injuries. Then there is statement of Medical Officer who has done the post- mortem examination on the dead body. According to him there were following injuries: "(l) Contused wound 1" x 1/2" x bone deep on the right 2nd inter-costal space near the manubrium sterni.
(2) Contused wound 1/2" x 1/2" muscle deep little lateral to injury No. 1.
(3) . Contused wound 1/2" x 1/2" x muscle deep on the left 2nd inter-costal space near sternum.
(4) Contused wound 1/2" x 1/2" x muscle deep on right fourth inter-costal space near sternum.
(5) Contused wound 1/2" x 1/2' x muscle deep on the left clavicular region near shoulder-joint.
(6) Three circular wounds each measuring 1/4' x 1/4" X 1/4" in the right third inter-costal space adjacent to each other.
(7) Kive circular wounds each 1/4" x 1/4" x 1/4'over the back of left side of chest in -the scapular region piercing in the chest cavity all closely situated to each other."
These injuries according to the Medical Officer were ante-mortem and appeared to have been caused by discharge from fire-arm such as a gun and have been caused by one gun shot. The entry wounds according to him were sufficient to cause death in the ordinary course of nature. He however, further elaborated that "the assailant appear to be at the back of deceased at the time of fire".
5. The prosecution further examined Abdullah Tapedar Exh. 5, Rohal Khan Exh. 7, Qadir Bux Exh. 8, Muhammad Ishaque corpse carrier Exh. 10, complainant Mst. Janul Exh. 11, Qaisar Khan mashir of vardat and Inquest report Exh. 13, Sahib Khan mashir of arrest of accused and that of securing gun from accused Anwar Exh. 17 and Muhammad Hussain, Investigating Officer Exh. 21.
6. It has been established by the statements of the com plainant and the prosecution witnesses that the parties belong to Bugti Baluch Tribe and are related inter se having existing old enmity as well.
7. The motive of the incident as disclosed by the prosecution is that this murder of Banho has been committed by the accused to take revenge of the murder of Soomar brother of Wali Muhammad, in which deceased and his two sons are said to have taken part. The accused produced no defence and flatly denied their participation in the offence. They however, admitted the matrimonial dispute between the parties and the inter se relationship and factum of death of Soomar and the involvement of the deceased and his two sons in the offence.
8. We have heard Mr. Azizullah K. Shaikh, Advocate for the appellants and Mr. Abdul Karim Lakhan, Advocate for the State. The learned counsel for the appellants during the course of his argument pointed out that the case of the prosecution suffers from grave discrepancies in many details, they being sufficient by themselves to raise benefit of doubt in favour of the appellant. He submitted that statement of complainant Mst. Janul who is the only eye-witness is not supported as regards to identity of the appellants by the next eye-witness produced by the prosecution namely, Qadir Bux, as Mst. Janul has stated in her F. I. R. that-- "When we covered a distance of about 3/4 miles, all of a sudden accused Abdullah, who was armed with gun and accused Anwar who was armed with 'lathT both came out from a 'khabaP and challenged my husband Banho that they would not spare him and accused Abdullah pointed my husband with gun.
As accused Anwar is my real nephew and accused Abdullah is my sister's son, therefore, for the defence of my husband 1 stood in front of him, so that they may think of me, and refrain from killing of my husband, but accused Anwar came running and drove me away, while holding my arm, and Abdullah one after the other, tired two gun shots which struck my husband, who fell down there, thereafter Anwar inflicted him 'lathi' blows. At that time, at a short distance Kadir Bux Mulan and other three persons, who are not known to me, who were ploughing, they also came running, on seeing them coming accused ran away towards village. Kadir Bux and others also saw the accused while firing gun shots and running thereafter." and Mst. Janul it was submitted, has further stated in her state ment that she has told the name of the accused to P. W. Qadir Bux. It was pointed out that the important fact as regards to the identity of the accused P. W. Qadir Bux (he only next eye witness does not support at all the statement made by complainant Mst. Janul, because in his examination Kadir Bux states that-- "I was ploughing the land, P. W. Khair Muhammad was also ploughing. We heard two gun shots. 1 saw two persons running away. 1 saw one of them having a gun while the other was empty- handed. 1 could not identify them as they were with their sides to me. 1 also saw an old woman running towards me. She told me that her husband was murdered and 1 should help her to arrange the dead body. On my enquiry she did not give the names of the culprits but she told me that one of them was her nephew and the other was son of her sister. I did not go to the dead body fearing that I might be implicated."
It wajs further pointed out by the learned counsel for the appellants that statement of Mst. Janul the complainant is clearly against the medical evidence on record because as stated earlier according to the Doctor the injuries were caused by one gun shot and not by two as stated by Mst.
Janul and secondly the gun was lired from the back of the deceased and not from front as stated by Mst. Janul. She has stated that the accused Abdullah shot her husband on his chest while accused Anwar held her by hand and threw her on the ground and thereafter, he gave lathi blows to the deceased as well. The learned counsel for the appellant severely criticised this part of the evidence of the first informant stating that the Doctor being independent witness and an expert in his profession is more teliablc in the circums tances than the evidence of the complainant. Firstly, her state ment is belied by the medical report as the deceased has no injury caused by a lathi, secondly the injury which caused the death is result of only one gun shot and not two as stated by the complainant and thirdly as the gun must have been fired from a distance, had the complainant been telling truth that she tried to cover her husband, it is very natural in the circumstances it was argued, that she might have sustained some injuries by the pellets discharged from the gun, having been spread by the distance but she has not sustained any injury of the shot, therefore, it was argued that her statement that-- "I was together with my husband. My husband got the gunfire shot in his chest. My husband was facing the accused," should not be believed at all. If that is so it is argued, the prosecution has failed sufficiently to prove the involvement of the appellants in the incident. As already stated, the only other eye-witness Qadir Bux does not support the complainant with regards to identity of the appellants. I t was further argued that due to non-support of Qadir Bux, there is no corroboration in the eye of Jaw which is very necessary in the circumstances to the statement made by Mst. Janul.
9. It was argued by the learned counsel for the appellants that there is no denial that old enmity exists between the parties and the present murder is in the chain of revenge the parties are taking against each other since last 60 years. In these circumstances it was urged that when bitter enmity exists between the parties, the statement of complainant as a solitary eye-witness who is admittedly on inimical terms with the appellants' family although their relation as well, should not be believed at all. In support of this proposition he relied on Doulat and others v. The State (1), wherein it was held :-- "Apart from the above circumstances against the veracity of the testimony given by the three eye- witnesses the evidence of the eye-witnesses is not corroborated at all. The witnesses are all relations between them; of course all the appellants are also related to them. Enmity is admitted between the parties on the question of suspicion of the deceased being on illicit intimacy with the mother of the appellants. Under these circumstances we find it not possible for us to accept the uncorroborated testimony of the prosecution witnesses against the appellants. The guilt of the appellants has thus not been proved."
The learned counsel for the appellants further referred to us Khurshici Ahmad v. Kabool Ahmad and others (2) wherein it was held that:-- "Parties inter-related--.Enmity established--Prosecution witnesses interested--Independent corroboration of evidence imperative-- Corroborative evidence in form of circumstantial evidence -- Must be arising from sources distinct from and independent of already tainted source-- Corroboration of testimony of interested witnesses in murder case--Corroboration required both as to factum of incident as well as regarding identity of assailant."
The learned counsel further relied on Ayo v. The State (3), in which it was held by a Division Bench of this Court that-- "this is a case of a kind of blood fued between two parties and the evidence is not only of persons who are inter-related
(1) PLD 1964 Kar. 187 (2) PLD 1964 Kar. 356
(3) PLD 1967 Kar. 791 but who are admittedly in the camp opposite to that of the accused. Therefore, some kind of corroboration would have been necessary so as to remove such doubt as might attach to the evidence of the partisan eye-witnesses and also removing such doubt as attached on the point of identification,"
The learned counsel for the appellant next referred to the case of Thanghai v. The State (1) wherein it was held that :-- "Prosecution eye-witnesses not only related to one another but hostile to accused due to enmity against him--Reliance cannot be placed on evidence of such witnesses unless corroborated by independent evidence." *
10. As we have observed earlier, the bitter enmity of the parties who belong to the same caste i.e. Bugti Baluch is borne out by the record and admitted by the parties in their statements. In view of the decisions cited above and the circumstances of this case we are of the opinion that the statement of Mst. Janul the complainant who is the only eye-witness not being corroborated by Qadir Bux as required by law, is not worthy of credit. The remaining witnesses are not of much importance as they do not corroborate the statement of the complainant in all material facts. Not to say that statement of Qaisar Khan and Sahib Khan suffer from many contradictions with regards to their presence at vardat and recovery of the gun and arrest of the accused and statement made by complainant Mst. Janul to them besides they are more nearly related admittedly to the complainant than the appellants. No reliance can therefore, be placed on the statements of these witnesses. [10] and benefit of doubt in the circumstances of the case as discussed above, must be given to the appellants. We therefore, accept the appeal and set aside the conviction and sentence of the appellants under section 302 read with section 34, P. P. C. and acquit the appellants, who are ordered to be released forthwith.
Appeal allowed.
1972 P Cr.
1. J 596 [Lahore] Jiefore Saleem Maihar, J MUNIR AHMAD--Petitioner versus The STATE and another--Respondents Criminal Revision No. 209 of 1965, decided on 28th October 1971.
(a) Penal Code (XLV of I860), S. 289 read with Criminal Pro- cedure Code (V of 1898), Ss. 244 & 245-- Summons case--Discharge-- . Acquittal--Summonses issued to prosecution witnesses served but witnesses not appearing-- Order for issue of fresh summons passed but no summons issued--Magistrate, however, discharging accused-- Order of discharge being in fact an order of acquittal, held, not at all proper --Magistrate should have issued fresh summons and not penalised prosecution for no fault of theirs, [p. 597]F
(b) Criminal Procedure Code (F of I898), S. 435 read with S. 438/439--Reference coming up for hearing more than seven years after date of occurrence-- Further continuation of proceedings, held, would serve no useful purpose in circumstances--Penal Code {XLV of I860), S. 289. [p. 598]B Petitioner in person.
Naseem Ahmad Khan for the State.
S. A. Nasir for Respondent No.'2.
Dates of hearing : 27th and 28th October 1971.
Order of Reference The facts of the case are as follows :-- Munir Ahmad lodged an F. I. R. with Police Post Nawan Kot, Lahore, stating that on 5-6-64, Zulfiqar Ali, accused, while he was leading his Alsatian dog by a chain unloosened it from the collar and set it upon the complainant with the result that the dog gave him a bite causing injuries to him. The Police even tually put the case against Zulfiqar Ali accused into Court for his prosecution under section 289, P. P. C. The learned Magistrate ^ summoned the accused and recorded his statement.
Then by order dated 8-12-64, the learned Magistrate directed that the remaining prosecution evidence be producetd on 17-12-64. The record would show that summonses were issued to Muhammad Siddique and Abdul Salam witnesses for appearance on 17-12-64. Both the witnesses were served but did not appear in Court on the date fixed. The learned Magistrate ordered fresh summons be issued to the witnesses for appearance on 30-12-61. The record does not show that any summons had been issued. However, on 30-12-64, the learned Magistrate ordered that the accused be "discharged."
The proceedings are forwarded to the High Court for revision on the following grounds :-- The case as put into Court was one under section 289, P. P. C., that is a case triable as a summons case. The order of discharge is tantamount to an order of "acquittal" under section 245, Cr. P. C. As required by section 244 the Court was under an obligation to issue summons to any witnesses that the prosecution might have desired to produce. The learned Magistrate issued summonses for appearance on 17-12-64. If in pursuance of the order dated 17-12-64 no summons had been issued or the witnesses had remained unserved, fresh summonses should have been issued. In any case it was not proper for the learned Magistrate to discharge or acquit the accused for no fault of the prosecution.
Tn pursuance of the provisions of section 435 read with sections 438 and 439, P. P. C. the file is submitted to the High Court of West Pakistan with a recommendation that the order passed by the learned Magistrate be set aside and the learned Magistrate be directed to dispose of the case in accordance with law.
Judgment of the Hig.h Court This is a reference under section 435 read with section 438/ 439, Cr. P. C., made by the learned Additional Sessions Judge, Lahore, wherein the order of Begum Surriya Irshad, M. I. C., Lahore, dated 30-12-6-1, dischrging the respondent No. 1 has been criticised and a recommendation has been made that the order passed by the learned Magistrate be set aside and the learned Magistrate be directed to dispose of the case in accordance with law.
2. Having seen the order of the learned Magistrate, I fully endorse the view taken by the learned Additional Sessions Judge in his order of reference and hold that the order of discharge in fact was an order of acquittal under section 245, Cr. P. C., as the case was put in Court under section 289, P.
P. C. which is triable as a summons case. According to section 244, Cr. P. C. the Court was under an obligation to issue summons to the witnesses that the prosecution might have desired to produce.
On perusal of order dated 17-12-64, I find, that no summons had been issued to the witnesses or the witnesses had remained unserved and, therefore, fresh summons should have been issued. I quite agree with the learned Additional Sessions Judge on this point that the order of discharge or acquittal of the accused was not at all proper. But as the occurrence took place on 5-6-64, about which F. I. R. was lodged with Police Post Nawankot on the same day by Munir Ahmad, petitioner, and it is more than seven years that have elapsed when this reference has come up for hearing I am of the view that no useful purpose would be served by further continua tion of the proceedings after such a long time. But it appears necessary to call for the explanation of the Magistrate for having disposed of the case in such careless and cursory manner.
3. The Office should locate this officer to whom a copy of this order may be sent to enable her to furnish her explanation which may be done within a month's time. .